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2018.7.10 Demurrer, Motion to Strike 473
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2018.7.10
Excerpt: ...all cross‐defendants' demurrers to the third cause of action without leave to amend. To sustain all cross‐defendants' general demurrers to the second, fourth and seventh causes of action with leave to amend. To overrule the general demurrers to the fifth and six causes of action. To grant motion to strike as prayed for with leave to amend. An amended crosscomplaint shall be filed and served within 10 days of the clerk's service of this minute...
2018.7.10 Demurrer 399
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2018.7.10
Excerpt: ...pose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §430.41, subd. (a).) A demurring party must file and serve with the demurrer a declaration stating the means by which it met and conferred with the party that filed the pleading subject to demurrer and that the parties did not reach an agreement resolving the objections raised in the demurrer or stating that t...
2018.7.10 Demurrer, Motion to Strike 380
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.7.10
Excerpt: ... is subject to” the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The self‐represented litigant “is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations and quotation marks omitted.) In the instant case, moving party failed to meet and confer with Defendant prior to filing the instant motions. Parties are requi...
2018.6.28 Demurrer 085
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.28
Excerpt: ...ueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) The court finds that what plaintiff filed is the Second Amended Complaint despite plaintiff's attempt to style it as a “supplemental” pleading. It was filed in response to the demurrer, in lieu of opposition. Thus, it will be regarded as an amended pleading for purposes of counting the number of amendments plaintiff is allowed without leave of court pursuant to Code of Civil...
2018.6.28 Motion to Permit Inspection of Peace Officer Records 085
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.28
Excerpt: ...allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, making false arrests, and false or misleading internal reports including but not limited to false overtime or medical reports. Defendant has not shown that records related to complaints of excessive force are relevant to the issues and defenses raised in the present case, so the court will not require such record...
2018.6.28 Motion to Compel Responses 379
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.28
Excerpt: ...errogatories. Plaintiff is to provide verifications within ten (10) court days of this order. To grant the motion for deemed admissions unless Plaintiff requests a hearing on this tentative and can provide a verification for the responses, or proof that verification has been provided, at the hearing. To deny the request for sanctions. The Court orders Moving Party to pay additional filing fees of $120.00 to be due and payable to the court clerk w...
2018.6.28 Motion to Compel Further Responses 529
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.28
Excerpt: ...rule the overbreadth objection for all other demands. For Demands Nos. 1, 3, 4, 9, 11, 17, and 21, to order that Zenith produce all documents not identified in a further verified response as subject to the attorney‐ client and/or work product privileges. The identification must be in a further response under oath which identifies each document withheld with its author, date of preparation, all recipients, and the specific privilege claimed. If ...
2018.6.28 Motion for Summary Adjudication 219
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.28
Excerpt: ...ence in support of the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐ Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing o...
2018.6.28 Motion for Attorney Fees 226
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.28
Excerpt: ...(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act via the mediation settlement, wherein defendant agreed to pay them $200,000 in damages, including a full statutory “buy‐back” of their vehicle, incidental and consequential damages, and a maximum civil penalty. Thus, they are the prevailing party, and as such they are entitled to attorneys' fees. (Civ. Code § 1794, subd. (d).) The stat...
2018.6.28 Demurrer, Motion to Strike 586
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.28
Excerpt: ... cause of action, with leave to amend. Any amended pleading must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface typefont. Explanation: Demurrer: General Demurrer: Jurisdiction (Worker's Compensation) Colonial demurs to the first, second and fourth causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (a) on the grounds this court lacks subject matter j...
2018.6.27 Demurrer 609
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.27
Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: A complaint must allege ultimate facts stating an actionable claim; simply pleading the evidence by which plaintiff intends to prove his or her case is insufficient. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; see Code Civ. Proc. §425.10(a)(1).) “Because the insurer...
2018.6.27 Motion for Attorney's Fees 611
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.27
Excerpt: ...torney's fees and costs to defendant within 30 days of the date of this order. Explanation: Defendant seeks attorney fees after prevailing on a motion to strike plaintiff's strategic lawsuit against public participation (SLAPP) action. Under Code of Civil Procedure section 425.16, subdivision (c)(1), “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney&#...
2018.6.27 Motion to Compel Responses to Discovery Requests 355
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.27
Excerpt: ....300, 2031.300, 2031.310.) Plaintiff is ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Defendants E. and R. Lemus, and against Plaintiff. (Code Civ. Proc. §§ 2023.010(d), 2030.290(c), 2030.300(d), 2031.300(c).) Plaintiff is ordered to pay $1,065.00 in sanctions to the Hartsuyker, Stratman & Willi...
2018.6.27 Motion to Compel Responses, to Deem Requests for Admissions 893
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.27
Excerpt: ... plaintiff William Gong's Form and Special Interrogatories, Set One and plaintiff William Gong's Requests for Production, Set One as to Defendant Cristallo Ventures, LLC. Defendant Cristallo Ventures, LLC will provide verified responses to the Form Interrogatories, Set One, Special Interrogatories, Set One and Requests for Production, Set One without objection within 20 days after the clerk's service of this order. To grant the Motion to Deem Req...
2018.6.27 Application for Admission to Bar Pro Hac Vice 631
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.27
Excerpt: .... Rules of Court, Rule 9.40.) Explanation: The Court does not find that Mr. Ibarguen's representation of Defendants by virtue of his representation of Hearst Television, Inc. and Hearst Communications, Inc., constitutes the practice of law in California. Plaintiff offered no authority for this argument. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is n...
2018.6.26 Claim for Surplus Proceeds 082
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.26
Excerpt: ...est.” Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code, § 500.) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b).) A claimant of surplus sale proceeds bears the burden of proving his ...
2018.6.26 Motion for Trial Preference 010
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.26
Excerpt: ... alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed a complaint alleging causes of action for elder abuse, negligent hiring and supervision, and assault and battery. On April 19, 2018, Plaintiff filed a motion seeking trial preference. An opposition and a reply were filed. Trial Setting Preference Code of Civil Procedure section 36 states...
2018.6.26 Application for Writ of Possession 094
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.26
Excerpt: ...ore, the matter will be taken off calendar. The Court notes that the papers on file in support of the application are probably insufficient to support the relief claimed. In order to be entitled to relief, a plaintiff must show that the claim as “probable validity,” which means “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. §481.190.) The evidence presented mus...
2018.6.26 Claim to Surplus Funds 766
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.26
Excerpt: ...ssor in interest, or the vested owner at the time of the trustee's sale. (Civ. Code §2924k(a)(1)‐ (4).) A declaration signed under penalty of perjury outside of California must state on its face that it is made “under the laws of the State of California.” (Code Civ. Proc. §2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) In the case at bench, a tr...
2018.6.26 Demurrer, Motion to Strike 629
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.26
Excerpt: ...nt. Explanation: Defendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (“Defendant Brokers”) demur to the cause of action for breach of contract contained in the First Amended Complaint based on the Purchase Agreement, attached as Exhibit A to the First Amended Complaint. Defendant Brokers also move to strike the claim for attorney's fees based on the Purchase Agreement. Defendant Brokers' princ...
2018.6.26 Motion for Leave to File Amended Answer 274
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.26
Excerpt: ...of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] ‘In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriatel...
2018.6.26 Motion to Contest App for Determination of Good Faith Settlement 219
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.26
Excerpt: ...ued to August 28, 2018, at 3:30 p.m. in Dept. 503, to allow the moving party time to engage in additional discovery, as requested. Explanation: A settlement entered into by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” (Code Civ. Proc. §877.6.) To encourage settlement, it is “quite proper for a settling defendant to pay less than [its] proportionate share of the anticipated damages. . . . Wh...
2018.6.26 Motion to Set Aside Default Judgment 475
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.26
Excerpt: ...ising from a multi‐vehicle collision that took place on April 2, 2016 on I‐70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ended” by a truck owned by the Defendant causing damages totaling $68,252.95. On September 27, 2017, the Plaintiff filed a motion seeking to serve the Defendant via service of summons upon the Secretary of State on the grounds that CHD Transport, Inc. is a suspended corporation and it had been...
2018.6.21 Motion to Compel Responses, for Monetary Sanctions 380
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.21
Excerpt: ...ed responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Frank Cruz to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To deny defendant Mel Abdelaziz's motion that the truth of the matters specified in the requests for admis...
2018.6.21 Motion for Trial Preference Setting 406
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.21
Excerpt: ... supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking trial preference. Opposition and a reply have been filed. Trial Setting Preference CCP § 36 states in relevant part: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole...
2018.6.21 Demurrer 592
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.21
Excerpt: ...s of action for conversion and replevin, contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.” (Baldwin v. Marina City Properties, ...
2018.6.21 Motion to Appoint Trial Counsel 520
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.21
Excerpt: ...hese arguments, California and federal courts have consistently found that indigent plaintiffs in civil actions do not have a right to appointed counsel.” See Defendant's Memorandum of Points and Authorities in opposition at page 8 lines 12‐19 citing inter alia Turner v. Rogers (2011) 564 U.S. 431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy arguments and innovative interpretations of federal...
2018.6.21 Motion to Transfer Venue, Request for Monetary Sanctions 401
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.21
Excerpt: ...ubd. (b).) Plaintiffs' counsel shall pay sanctions to defendants within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of transferring the action. (Code Civ. Proc. § 399, subd. (a).) Explanation: Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where th...
2018.6.21 Motion to Quash Service of Summons 599
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.21
Excerpt: ...service of summons on the grounds that the court lacks jurisdiction. This embodies any of the basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the method of service utilized by the plaintiff did to comply with Code of Civil Procedure §413.10(c). Failure to comply with the Hague Convention renders service on foreign defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789....
2018.6.21 Motion to Dismiss, Request for Monetary Sanctions 476
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.21
Excerpt: ...re of moving party to prove service of its Request for Pretrial Discovery Conference. Explanation: For sake of clarity, Northbrook Indemnity Company will be referred to as “Respondent” and Robert Knight will be referred to as “Claimant.” Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court has exclusive jurisdiction over discovery disputes for uninsured and underinsured motorist arbitration. (Miranda v. 21st ...
2018.6.21 Motion to Determine Good Faith Settlement 062
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.21
Excerpt: ...ement and a brief description of the dispute is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group LLC has made the required barebones showing. Pursuant to California Rules of Court, rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting t...
2018.6.20 Motion to Compel Compliance with Subpoenas 257
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.20
Excerpt: ...s. The Motion is Authorized: Plaintiff contends the motion is unauthorized because Fresno County Superior Court Local Rule 2.1.17(A) provides: “. . . no motion under [C.C.P.] sections 2016.010 through 2036.050 . . . shall be heard . . . unless . . . [a] request for a Conference has either been denied and permission to file the motion is expressly granted via court order or the discovery dispute has not been resolved as a consequence of such a c...
2018.6.20 Motion for Leave to File Complaint, Continue Trial 773
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.20
Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, aft...
2018.6.20 Motion for Final Approval of Class Action Settlement 136
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.20
Excerpt: ...es have been mailed to over 90% of the class members, although a small percentage could not be located, apparently because they have moved. No objections have been received, and no class members have chosen to opt out of the class. It does not appear that any other events have occurred which would cast doubt on the reasonableness of the settlement. Therefore, the court intends to grant the motion for final approval of the class action settlement,...
2018.6.20 Motion to Consolidate 691
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.20
Excerpt: ... 17CECG01691 as the lead case. All hearing dates currently scheduled in case number 17CECG02981 are ordered vacated. An Order to Show Cause re: Service is scheduled in Department 404 on July 12, 2018 at 8:30 a.m. Explanation: Rule 3.350 of the California Rules of Court governs the procedure to be used when filing a motion to consolidate. The motion must: (a) list all named parties in each case, the names of those who have appeared, and the names ...
2018.6.20 Demurrer, Motion to Strike 621
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.20
Excerpt: ...strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) Defendants' demurrer is ordered off calendar as moot. Plaintiff's attempted “discovery motion” is ordered off calendar, since Plaintiff did not obtain a hearing date for this motion. Defendants' evidentiary objections are overruled. Explanation: Anti‐SLAPP motion The anti‐SLAPP statute provides: “A cause of action against a person arising from any...
2018.6.20 Demurrer, Motion to Strike 879
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.20
Excerpt: ...to allow Plaintiff to allege some other basis for attorney's fees, if it can. Plaintiff shall have ten (10) court days in which to file a First Amended Complaint. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurre...
2018.6.20 Motion to Compel Inspection of Premises, for Sanctions 427
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.20
Excerpt: ... Currently the property is rented to non‐parties to this litigation. Plaintiff has served a demand on defendants to conduct a one‐hour inspection of the property. Defendants were unsuccessful in their attempts to obtain the current tenants' permission to inspect the property. Plaintiff moves to compel defendants to permit the inspection. The motion is brought under Code of Civil Procedure section 2031.320(a), which provides that if the party ...
2018.6.20 Motion for Determination of Good Faith Settlement 293
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.20
Excerpt: ...ontribution, as Laticrete has also settled with plaintiff and obtained its own order determining the settlement to be in good faith. Thus, Benchmark's indemnity and contribution claims against Laticrete are barred. Explanation: Under Code of Civil Procedure section 877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue o...
2018.6.20 Motion to Strike, Application to Appear Pro Hac Vice 631
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.20
Excerpt: ...ke Plaintiff's first amended complaint on the ground that it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) To grant Jonathan Donnellan's application for admission to the bar of this Court pro hac vice. (Cal. Rules of Court, Rule 9.40.) Explanation: Application Pro Hac Vice The Court does not find that Mr. Donnellan's representation of Defendants, by virtue of his representation of Hearst Televisio...
2018.6.20 Petition to Confirm Arbitration Award, Enter Judgment 588
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.20
Excerpt: ... mediation and therefore the extent to which any agreements reached during that meeting are subject to applicable mediation privileges. Any party to an arbitration in which an award has been made may petition the court to confirm the award. (Code Civ.Proc. §1286.) A petition must do at least the following: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate; (b) Set forth the names of the arbitrators; (c) Set for...
2018.6.20 Petition to Compromise Minor's Claim 445
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.20
Excerpt: ...proceeds is not properly supported. The proceeds may be delivered to the petitioner/mother to be held in trust for the minor if the requirements of Probate Code §3401(c) have been satisfied. However, the requirements of Probate Code §3401(c) have not been satisfied. There is no evidence that the petitioner/parent has provided a written assurance, verified by oath that the total estate of the minor, including the money or other property to be pa...
2018.6.19 Motion to Compel Arbitration 292
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.19
Excerpt: ... the “Alternative Dispute Resolution Policy” (“ADR policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment, are deemed severed from those documents. To overrule all of plaintiff's evidentiary objections. Explanation: The moving party bears the burden of showing the arbitration agreement exists. (Code Civ. Proc. § 1281.2; Engalla v. P...
2018.6.19 Demurrer 767
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.19
Excerpt: ...Cal.App.4th 1049, 1054, internal quotation marks and citations omitted; see Code Civ. Proc. §472(a).) Accordingly, the filing of an amended pleading renders a demurrer to the original pleading moot. (Ibid.; Morehead v. Turner (1940) 41 Cal.App.2d 414, 418.) In the instant action, Defendants Growers Farm and Garcia filed a first amended answer on June 13, 2018. Though the amended answer was late‐filed (see Code Civ. Proc. §1005(b)), the Court ...
2018.6.19 Motion for Default Hearing 938
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.19
Excerpt: ... for $143,551.00. This includes an unpaid principal of $110,000, interest of $27,126.00, attorney's fees of $5,850.00, and court costs of $575.00. None of these are accounted for on the CIV‐100 form. Furthermore, the declaration does not explain, or contain any documentation supporting, the claim for $110,000 other than a conclusion that that was the unpaid principle for the note. Therefore, unless plaintiff can produce the evidentiary proof fo...
2018.6.19 Motion for Determination of Good Faith Settlement 049
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.19
Excerpt: ...n good faith shall bar any other joint tortfeasor or co‐obligor from any further claims against the settling tortfeasor or co‐ obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. §877.6(c).) In considering a motion pursuant to section 877.6, the court balances the statute's goals of (1) encouragement of settlements, and (2) equitable sh...
2018.6.19 Motion for Good Faith Settlement 284
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.19
Excerpt: ...e reasonable “ballpark” of the settling crossdefendants' liability. (Code Civ. Proc. § 877.6; Tech‐Bilt, Inc. v. Woodward‐ Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Explanation: Under Code of Civil Procedure section 877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐ obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlem...
2018.6.19 Motion for Preliminary Approval of Settlement 920
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.19
Excerpt: ...five‐ year trial date. Explanation: The court incorporates herein its ruling of May 9, 2017 for historical perspective. 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newbe...
2018.6.19 Motion for Summary Judgment, Adjudication 333
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.19
Excerpt: ...order. Explanation: The party moving for summary judgment/adjudication bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, (2001) 25 Cal.4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issu...
2018.6.19 Motion for Terminating Sanctions and Monetary Sanctions, to Compel Deposition 675
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.19
Excerpt: ...erk's service of this order. As an evidence sanction, if the cell phone is not produced within 20 days of the clerk's service of this order, the court hereby orders that the cell phone and videos filmed on that cell phone may not be referred to at trial or introduced in evidence in this proceeding. To order plaintiffs Manuel Cubias and Gustavo Gonzalez to appear for properly noticed depositions within 30 days of the date of the clerk's service of...
2018.6.19 Motion to Compel Responses, to Deem Request for Admissions Admitted, for Monetary Sanctions 841
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.19
Excerpt: ...e initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, are moot. Responses have been provided. The motion that the truth of the matters specified in the requests for admission, set one, be deemed admitted as to defendant Paul Evert's RV Country, Inc. is moot. Defendant provided response to the requests for admission that are in substantial compliance with ...
2018.6.19 Motion to Compel Deposition, for Production of Docs, for Monetary Sanctions 290
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.19
Excerpt: ... payable within 30 days to defendants' counsel of record, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP. Should plaintiff fail to appear at the newly noticed deposition, defendants may file a motion for terminating sanctions without first complying with Fresno County Superior Court Local Rule 2.1.17. Explanation: There was no need for defendants to comply with Local Rule 2.1.17 and request a pretrial discovery conference before filing this m...
2018.6.19 Motion to Strike 136
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.19
Excerpt: ...e Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The anti‐SLAPP statute may be invoked to challenge suits based on statements made in connection with an issue being considered by a judicial body. (Code Civ. Proc. §425.16(e)(2).) Pleadings, statements and writings “in connection with” civil litigation come within the parameters of the anti‐SLAPP statute. It need not be shown that the litigated matter is of public i...
2018.6.19 Petition to Compromise Minor's Claim 301
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.19
Excerpt: ...he petitions setting out the rule 7.955 factors and no Attachment 18a copy of the fee agreements attached to the petitions. The declarations and fee agreement were presented in a separate document dated a week after the petitioner signed the petitions. The petitions are supposed to contain all the required attachments and state how many pages are attached. See Item 23 of the petitions. This is how the Court can ensure that the petitioner had prop...
2018.6.14 Motion to Bifurcate 824
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.14
Excerpt: ...oc. §§ 598, 1048.) As the decision to bifurcate is discretionary with the trial judge, and recognizing that this department may not be the ultimate trial department, the Court denies the motion to bifurcate at this time, without prejudice to it being renewed in limine. Judgment on the Pleadings The sole question presented by a defendant's motion for judgment on the pleadings is whether or not the facts stated in the complaint constitute a c...
2018.6.14 Motion for Summary Judgment, Adjudication 258
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.14
Excerpt: ...r Admission admitted “establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Any matter admitted in response to a Request for Admission is conclusively established against the party making the admission. (Code Civ. Proc. § 2033.410, subd. (a); see Murillo v. Sup.Ct. (People) (2006) 143 Cal.App.4th 730...
2018.6.14 Motion for Determination of Good Faith Settlement 219
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.14
Excerpt: ...tlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportionate share of comparative liability for the plaintiff's injuries. (Id. at. p. 499.) Where a motion for determination of good faith settlement is contested, the m...
2018.6.14 Demurrer 999
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.14
Excerpt: ...gations shall be in boldface. Explanation: Demurrer for Uncertainty: Defendant first demurs to the complaint for uncertainty on the ground that the causes of action in the caption of the complaint do not match the numbers of the claims in the body of the complaint, and the causes of action do not specify against which defendant they are alleged. However, courts look with disfavor on demurrers for uncertainty and will not sustain them unless the c...
2018.6.14 Demurrer 864
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.14
Excerpt: ...2016, California Code of Civil Procedure section 430.41 went into effect. Subdivision (a) of that section states, in pertinent part: Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. S...
2018.6.14 Motion for Summary Judgment, Adjudication 463
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.14
Excerpt: ...r other device. The photos of the standard connection assembly and the one at issue in the fire show that a rubber ring was on the one used in the fire. All parties agree this caused a leak, which then led to the explosion. All agree such rubber ring is not part of the assembly as designed by moving defendant. So no design defect is at issue. Plaintiffs tries to argue that the ring may have been added at moving defendant's factory anyway, outside...
2018.6.14 Motion for Summary Judgment 740
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.14
Excerpt: .... Sup.Ct. (1986) 179 Cal.App.3d 494, 498.) Here, the declaration of Doctor Douglas B. Malcolm, M.D. creates a triable issue of fact. Dr. Malcom opines that Saint Agnes – being a “busy California metropolitan emergency room facility” (Malcom Dec., filed: 5/23/18 ¶11), breached the standard of care in not having a radiologist available to interpret film twenty‐four hours per day. (Ibid.) According to Dr. Malcom, hospitals like Saint Agnes ...
2018.6.14 Motion to Compel Arbitration 703
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.14
Excerpt: ... 11, 2018. Service shall be by email. Explanation: Defendant Aerotek moves to compel plaintiff to arbitrate his claims against “all defendants.” The notice of motion was not directed to defendant O'Neill Beverage Company, LLC, and that defendant has neither joined in this motion, nor opposed it. A refusal to arbitrate is a prerequisite to a motion or petition to compel arbitration. Also, Aerotek only cites authority indicating that a third pa...
2018.6.14 Motion to Strike 984
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.14
Excerpt: ...A special motion to strike pursuant to Code of Civil Procedure §425.16 (an “AntiSLAPP motion”) provides a means for quickly identifying and eliminating suits brought to chill the valid exercise of a party's constitutional right of petition or free speech. In order to invoke the protection of the anti‐ SLAPP statute, the defendant must show that the plaintiff's lawsuit arises from defendant's exercise of free speech or petition rights as de...
2018.6.13 Motion for Determination of Good Faith Settlement 293
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.13
Excerpt: ...asors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor o...
2018.6.13 Demurrer 064
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.13
Excerpt: ...3d 311, 318.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” (Aragon–Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238; see Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431 [“facts have no place in a demurrer”].) Demurrers supported by evidence are referred to as “speaking” demurrers and are improper. (Mohlmann v. Cit...
2018.6.13 Demurrer, Motion to Strike 219
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.13
Excerpt: ... which to cut off the right to file cross‐complaints bringing in new parties without permission of court.” (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.) Where a party files a cross‐complaint after the first trial date has been set, the cross‐complaint is subject to a motion to strike. (Code Civ. Proc. §436(b); Loney, supra, 160 Cal.App.3d at p. 724.) Leave of court is required to file a cross‐complaint, or amended cross‐c...
2018.6.13 Motion for Default Judgment 057
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.13
Excerpt: ...ars to have been filled out correctly. However, again, what Plaintiff appears to be asking for (as far as the declarations seem to suggest) does not appear to match the allegations in the complaint. The previous ruling asked for briefing on whether the change in terms was allowed for Plaintiff's specific performance claim. “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plainti...
2018.6.13 Motion for Determination of Good Faith Settlement 242
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.13
Excerpt: ...be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affid...
2018.6.13 Motion to Set Aside Dismissal 879
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.13
Excerpt: ...ubdivision (b). The motion is timely and is based on Plaintiff's attorney's affidavit of fault. Counsel states he failed to appear at the OSC due to a calendaring error. The only possible exception to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), is where the dismissal is not the result of attorney fault. Here, there is no evidence on which to base such a finding. Accordingly, Plaintiff's motion to have the dism...
2018.6.13 Motion to Substitute Plaintiff 451
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.13
Excerpt: ...r proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Here, the moving party presented evidence that it is the assignee of the claim. No opposition was filed to the motion. The moving party may be substituted in as the plaintiff in this action. The motion is...
2018.6.12 Motion for Summary Judgment 464
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.12
Excerpt: ...prevail on their claim. Indeed, it appears that defendant is correct, as the undisputed facts show that plaintiffs do not own the 0.37 acre parcel that they allege was taken by the State. As plaintiffs do not own the parcel, they cannot prevail on their taking claim. “Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be ‘taken' (U.S. Const., 5th Amend.) or ‘taken...
2018.6.12 Motion for Settlement Approval 071
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...ng parties, seek approval of a settlement as a Private Attorney General Action (“PAGA”), pursuant to California Labor Code section 2698 et seq. Plaintiffs appear to be correct in asserting that the legislature did not provide any guidance to the courts in terms of reviewing a PAGA settlement. (See Labor Code § 2699 et seq.) While PAGA claims are procedurally distinct from class action claims, there are similarities in the two in terms of a c...
2018.6.12 Motion for Entry of Judgment 790
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...e a separate document and will be signed at the hearing. Explanation: This motion is brought under Code of Civil Procedure section 664.6 (“Section 664.6"). In pertinent part, Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the sett...
2018.6.12 Demurrer, Motion to Strike 342
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...� subject to the demurrer or motion. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) Both statutes clearly require the parties to “meet and confer in person or by telephone.” (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The moving party is required to file a declaration stating either of the following: (A) The means by which the [demurring or moving] party met and conferred with the party who filed the pleading . . . , and that the parties did not...
2018.6.12 Demurrer, Motion to Strike 051
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...he court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide sufficient evidence of the attempt and plaintiff's failure to meet and confer in good faith. If the parties cannot agree on the purported deficiencies in the complaint, defendant may file a new ...
2018.6.12 Demurrer 707
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.12
Excerpt: .... All new allegations shall be in boldface. Explanation: First of all, plaintiff's counsel has not submitted a declaration stating that he attempted to meet and confer with opposing counsel before bringing the demurrer, as required by Code of Civil Procedure section 430.41. “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject...
2018.6.12 Motion for Summary Adjudication 219
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence o...
2018.6.12 Motion for Summary Judgment 239
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.12
Excerpt: ...n's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (Code Civ. Proc., § 340.5.) This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff th...
2018.6.12 Motion to Withdraw Admissions 239
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.12
Excerpt: ...arty will result from allowing the admission to be withdrawn or amended. (Code Civ. Proc., § 2033.300, subd. (b); see New Albertsons, Inc. v. Sup.Ct. (2008) 168 Cal.App.4th 1403, 1418.) Judicial policy favors relief. Section 2033.300 is designed to eliminate undeserved windfalls obtained through requests for admission and to further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the p...
2018.6.12 Motion for Summary Judgment 619
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ....4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Id.) If the moving party fails to meet this burden of production, the opposing party has no evidentiary burden to even oppose the motion. “[T]here is no obligation on the opposing party . . . to establish anything by ...
2018.6.12 Motion for Terminating and Monetary Sanctions 293
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.12
Excerpt: ...). The case remains active as to defendant Brett Passmore. To grant Evans Electric Service's motion for monetary sanctions. Passmore Interprises, Inc. is ordered to pay monetary sanctions to the Law Offices of Barry E. Weber in the amount of $1,160.00 within 30 days after service of this order. Code of Civil Procedure §2023.030(a). Explanation: There is evidence that defendant Passmore Interprises, Inc. has engaged in misuse of the discovery pro...
2018.6.12 Motion to Compel Further Responses, for Sanctions 800
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.12
Excerpt: ...and sanctions Tentative Ruling: The motions to compel United Automotive Incorporated to provide further responses to form interrogatories, set one and special interrogatories, set one, request for admissions, set one and for sanctions are off calendar. The motions to compel Hadie Saadeldin to provide further responses to form interrogatories, set one, and sanctions are off calendar. Carlos Gonzalez has failed to comply with Local Rule 2.1.17 prio...
2018.6.12 Motion to Set Aside Dismissal 921
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.12
Excerpt: ...r. On April 28, 2016, pursuant to an “Order to Show Cause” hearing, the Court dismissed the case without prejudice. Plaintiff now moves to set aside the dismissal on the ground it is void for lack of jurisdiction and notice. As of June 8, 2018, no opposition to the motion had been filed. The general rule is that the filing of a notice of appeal divests subject matter over any matter embraced in or affected by the appeal during the pendency of...
2018.6.12 Application for Right to Attach Order 273
Location: Fresno
Judge: Snauffer, Mark
Hearing Date: 2018.6.12
Excerpt: ...App.4th 1100, 1106.) The moving party has the burden of proving: 1) that his claim is one upon which an attachment may be issued; and 2) the probable validity of the claim. (Santa Clara Waste Water Company v. Allied World National Assurance Company (2017) 18 Cal.App.5th 881, 885.) The declaration of Mike Paternostro is insufficient to establish that the documents purporting to be defendants' credit application and guarantee and Citibank's extensi...
2018.6.7 Motion for Preliminary Approval of Class Settlement 274
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2018.6.7
Excerpt: ...ication Although plaintiff's motion is entitled a motion for preliminary approval of the class action settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a...
2018.6.7 Motion for Preliminary Approval of Settlement 186
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.7
Excerpt: ... v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certifi...
2018.6.7 Motion to Strike 487
Location: Fresno
Judge: Black, Donald
Hearing Date: 2018.6.7
Excerpt: ... SLAPP statute, defendants need make only a prima facie showing that plaintiff's complaint “arises from” defendant's constitutionallyprotected free speech or petition activity rights as defined in Code of Civil Procedure section 425.16, subdivision (e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458‐459; see also...
2018.6.7 Petition to Compromise Claims 906
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.7
Excerpt: ...ees are calculated Petitioner does not clearly explain how the attorney fees are calculated. The court can see by the one fee agreement attached to the petition, and by checking the calculations, that petitioner proposes a fee that is 40% of the settlement. But the petitions should have clearly stated this, preferably in the attorney declarations.  Fee calculated on gross award rather than net The petitions are calculating the fee on the gross...
2018.6.7. Request for Default, Judgment 225
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2018.6.7.
Excerpt: ...e judgment. CCP §989 et seq. The plaintiff must present an affidavit of himself or herself, his or her agent, representative, or attorney attesting that the judgment is in whole or part unsatisfied, and specifying the amount due. CCP §991. The declaration filed on July 26, 2017 never specified the amount due. Further, Code Civ. Proc. §§ 989 et seq. applies only when the alleged joint debtor was named or joined as a party and a joint liability...

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